KITUO CHA SHERIA BLOG

Understanding the Tree at its Roots: General Principles of the Convention of Persons with Disabilities (CRPD) Contextualized

Historically speaking, the Convention of the Rights of Persons with Disabilities was the first human rights treaty of the 21^st century. The text was adopted by the United Nation General Assembly (UNGA) in 2006. The law came to force after ratification in 2008 and has 181 members including Kenya. The intention of this instrument was to promote and protect the dignity and the rights of persons living with disabilities around the world. This was crafted on the background that persons with disabilities were viewed more as charity cases rather than people with full inherent human rights and full members of the society. Widely acclaimed as the only instrument with an explicit aspect of sustainable development dimension, this paper looks at the general building principles of this instrument in relation to the domestic laws in Kenya.

Article 3 of the Convention on the Persons Living with Disabilities (CRPD) discusses a number of principles that underpin the rights of persons with disabilities hence the roots of disability right law.  This paper is however out to demonstrate what this principle means and what they portend for Kenya as one of the signatories of the convention.

Principle of Human dignity and Autonomy

The word dignity is derived from the Latin word dignitas which means worth- the idea that all human beings are worthy of respect by the virtue of being human beings. Autonomy on the other hands means that someone has the right to act without influence.  The shift in dimension from looking at PWDs as charity cases to human beings who deserve full rights and enjoyments of these rights brings to life this principle.  Member States are therefore obligated to ensure that these principles are carried within their laws and domestic legislation. In the Kenyan context, the Constitution of Kenya 2010 stipulates that every person has a right to dignity which needs to be respected and protected. Human Dignity is also a national value and principle listed under Article 10 of the Constitution of Kenya, 2010. Article 54 also stresses the inherent dignity of PWDs and qualifies it that they are not to be treated in a demeaning way.  The Persons with Disabilities Act is silent on autonomy and human dignity for PWDs however the very text of the Convention remains relevant in accordance to Article 2(5) and (6).

Principle of Non Discrimination

The principle of non-discrimination tends to guarantee that human rights are generally blind to inter alia sex, race and in this case disability. The Convention frowns upon a world where a person is denied their rights because of disability.  Persons living with disabilities primae facie face discrimination by virtue of societal and cultural design. In Kenya, the Constitution of 2010 is against discrimination of any form.  The Constitution of Kenya, 2010 lists non-discrimination as a national value.  The Persons with Disabilities Act is specific focusing on discrimination with regards to employment however, it is a bigger principle with a wider grasp.

Principle of Inclusivity

This is the idea that persons with disabilities should be included in every aspect of life. It is a principle that intertwines in a beautiful mosaic with other ideas. It is from this principle that the whole idea of disability rights is born. It propagates the idea that persons with disabilities should be included in all the spheres of life.

Principle of disability as Diversity in Humanity

This principle calls for acceptance of persons with disabilities within the society.  It promotes a view of celebrating these disabilities as diversity. The preamble of the Constitution of Kenya, 2010 carries these principles as it encourages the people of Kenya to embrace these differences. This principle is important as it is a reminder that even within the persons with disabilities, there is diversity as different PWDs have different concerns. Disability is diverse in terms of the kind of disability, economic and social status.

Principle of Equality of Opportunity

Persons with disabilities require opportunities in order to live a full social life. In Kenya, the Constitution of Kenya 2010 calls for affirmative action.  Article 56 requires that the State formulates a programme for affirmative action which is meant to ensure equality in opportunity. Article 54(2) on the other hand advocates for reservation of employment opportunities for persons with disabilities. Persons with Disabilities Act also advocates for employment opportunities and Education for PWDs.

Principle of Accessibility

Accessibility is a big concept when it comes to disability law. While the mind will always quickly go to physical access, there is need to think of the principle in a wholesome manner.  This is not to downplay the need for a transport mechanism that considers persons with disabilities or access to buildings and the need to insist on ramps.  The Constitution of Kenya, 2010 as well as the Disability Act covers these areas adequately. The only concern would be access to justice, healthcare, employment [which may be covered] but forms the broader picture.

Principle of Equality in Gender

There is need to recognize that even within the realm of persons with disabilities, there is a wide gap with regards to gender. Women and girls with disabilities are always double marginalized. There is therefore need to focus on this for one to deal with disability issues in a wholesome manner. This is not however to say that women and girls need more attention, rather, their issues are different and require different mechanisms to deal with.

Principle of Evolving Capacity in Children with disabilities

This is a principle that focuses on children living with disabilities. It enhances the thought that the growth of a child while is scientifically documented it is enhanced by the environment that the child grows.Children with disabilities are hindered by their disabilities in one way or another; however, it is a tragedy to imagine that they are affected in one way.

Way Forward

Having understood the root principles that underpin disability statutes and movement, we need to do the following: –

• Advocate for the progressive implementation of these rights and principle in a manner that shows progress
•  Create awareness amongst the province of PWDs so that they understand these as legal rights and not charity by the State
• Involving the Courts and the Judiciary as well as Parliament and the Executive in formulating plans and finding solutions in matters PWDs

By: –

Ouma Kizito Ajuong

Advocate of the High Court of Kenya &

Person with Physical Disability

https://www.facebook.com/pennyformythoughtsKZ/

https://www.poeticfountain.wordpress.com

International Day of Disabled Persons- Dec 3: [2019 Theme: Promoting the participation of persons with disabilities and their leadership: taking action on the 2030 Development Agenda]

The annual observance of the International Day of Disabled Persons was proclaimed in 1992 by United Nations General Assembly resolution 47/3. It aims to promote the rights and well-being of persons with disabilities in all spheres of society and development, and to increase awareness of the situation of persons with disabilities in every aspect of political, social, economic and cultural life.

Building on many decades of UN’s work in the field of disability, the Convention on the Rights of Persons with Disabilities, adopted in 2006, has further advanced the rights and well-being of persons with disabilities in the implementation of the 2030 Agenda for Sustainable Development and other international development frameworks, such as the Sendai Framework for Disaster Risk Reduction, the Charter on Inclusion of Persons with Disabilities in Humanitarian Action, the New Urban Agenda, and the Addis Ababa Action Agenda on Financing for Development.